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Queen City Farms Inc. v. Aetna Casualty & Surety Co.9/9/1994
r shut down. No thorough investigation of possible contamination ever occurred until the investigation begun in 1979, but in 1959 there was some evidence of contamination seeping into a nearby stream. When QCF was advised of the problem, they hired an engineering firm to conduct a study. An engineer working for the firm testified that he inspected the site, and found that branches sticking into the lake or stream had a coating of brownish red material on them. Testing of water on the property (including well water) was made, but did not reveal groundwater contamination.
In 1966 Queen City Farms was incorporated, and title to the property was transferred to it (the same people owned SDC and QCF). QCF continued to operate the disposal site. Two of the owners owned summer homes on the Maple Valley property near the waste ponds. The water supply for the homes and other activity on the farm came from an underground spring and well located about 2,000 feet downhill from the ponds. One of the owners of QCF (and SDC), Josie Razore, had the well water tested annually, but no contamination has ever been found in the well.
Evidence established that the ponds never overflowed, even when it rained. Periodically, when the level would get high, the owners would burn the pits. This lowered the level. The burning created a tar-like sludge that would sink to the bottom of the pits; there was testimony it lined the pits. There was testimony that hardpan clay was believed to lie under the pits. There was also evidence that the ground in the surrounding area was largely sand and gravel, and one of the owners testified that before the pits were sealed with burning, the waste would drain into the ground, where there was sand and gravel. Testimony of Banchero (May 12, 1988), at 51. He also said that "there's clay area around there, and I didn't know exactly how far down clay might have been . . . ." Testimony of Banchero (May 12, 1988), at 51. He testified that in the early years of the dumping several pitfulls of liquid drained from the pits. Testimony of Banchero (May 12, 1988) at 75-76, 86. A gravel business began on the property in the 1950's and continues to operate. The owners testified they thought the clay, sand, and gravel would filter the wastes.
The owners testified that they never expected wastes from the ponds to contaminate the surrounding ground and groundwater.
Dumping continued until 1969, and then effectively ceased. Thereafter, the ponds remained on the property.
When this action was brought to determine QCF's insurers' responsibilities for coverage for the clean-up costs, numerous insurers were defendants. A number have settled, and others have brought successful motions for summary judgment of dismissal on various grounds. At this stage, four insurers remain in the action: (1) Ernest A. Moore & Companies (Lloyd's), (2) Highlands Insurance Company, (3) Central National Insurance Company of Omaha, and (4) Maryland Casualty Company. Highlands and Central National are sister companies, and will hereafter be referred to collectively as "Central National." These insurers provided excess liability coverage during relevant periods, from January 1, 1966 to January 1, 1969 (Lloyd's); from January 1, 1977 to March 11, 1982 (Central National) (both companies)); and from January 1, 1975 to January 1, 1977 (Maryland Casualty).
The insurance policies issued by the insurers are comprehensive general liability policies, covering all risks or damage arising from an "occurrence" unless excluded.
The insurers other than Lloyd's sought summary judgment dismissing QCF's claims, arguing that coverage was excluded as a matter of law under pollution e
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